If you’re a creative freelancer and spend any time reading over your contracts, you likely come across the term “work made for hire” (or work for hire).
Here’s a sample legalese from a generic contract:
“You expressly acknowledge that the material contributed by you hereunder, and your services hereunder, are being specially ordered and commissioned by us for use in connection with [insert description of work]. The Work contributed by you hereunder shall be considered a “work made for hire” as defined by the copyright laws of the United States.
“Work Made for Hire” (or “Work for Hire”) is commonplace in freelancer contracts, yet the terms are often misunderstood, even misused. If you are a contractor or freelancer who produces original work for clients (or contracts others to produce original work for you), read on to learn more about work for hire and how it applies to U.S. copyright ownership.
Work Made for Hire: The Copyright Law Details You Need to Know
Work made for hire is part of U.S. Copyright Law. Its purpose is to change the default right of copyright ownership. According to U.S. law, anytime you create an original work of art, you automatically own the copyright from the moment you create it. “Work Made for Hire” changes this dynamic: the person paying for the work is treated as the author and owns the copyright. This means they can use the work wherever, whenever and however they want to—even to resell the rights to someone else. And unless you have permission from the client, you can’t do anything with the work yourself.
Sounds simple enough—and it makes sense. After all, if someone is paying you to produce a brochure, article, graphic or video, they want to be able to use it as they see fit, as well as assume you won’t sell the same work to someone else.
However, there are some stringent standards for establishing what’s considered work made for hire, particularly when the work is created by a freelancer. According to the copyright statute, the commissioned work needs to fall into one of nine categories:
- Contribution to a collective work
- Part of a motion picture or other audiovisual work
- Supplementary work (to another author’s work, such as a foreword, chart or table)
- Instructional text
- Answer material for a test
The work is considered work for hire if it falls into one of these nine categories—as long as that’s stipulated in the contract and both parties sign the contract. However, if the work doesn’t fall within one of these nine categories, then it’s not considered work for hire, no matter what the contract might say. According to Columbia Law School, many freelancer contracts contain broad clauses about work made for hire, even when there’s no legal basis to make that claim. They give some examples of these contracts here.
However, let’s face it. Many of the nine categories listed in the statute are vague. Newspapers and magazines are pretty clear examples of collective work, but what about an advertisement, annual report or company catalog? If you were asked to create an illustration for a company brochure, is that considered a contribution to a collective work?
The bottom line? You may not think that the work falls under one of these nine categories, but your client may argue otherwise in court.
What You Can Do to Protect Yourself
In many cases, as a freelancer or independent contractor, you are producing work that you have no intention of using again, and have full expectations that the copyright belongs to the client. However, if you have any reservations about handing over full ownership, there are a few things you can do:
- If you see a work made for hire clause in a new contract, ask about it. Tell the client that you’re not sure if the work for hire language is valid—in many cases, clients just use a boilerplate contract without fully understanding the details themselves. You can discuss whether the commissioned work falls under one of the nine categories or not. You can also discuss their concerns, your concerns, and hopefully arrive at a good understanding.
- If you don’t want to give your client full control over the work, then you’re better off licensing the copyright to them. Copyright license agreements need to be very specific and it’s best to have a lawyer help you draft the contract. This option gives you more flexibility such as licensing exclusive rights for first use.
- If you accept the work for hire wording in the contract, make sure it explicitly states that the assignment of copyrights is conditioned upon full payment of the compensation that’s due per contract. In other words, if you don’t get paid, they don’t get the rights.
- And it’s always a good idea to include a provision that gives you rights to show your work for self-promotional purposes, such as include in your portfolio to win other business.
Like with any contract term, it’s always best to come to a clear understanding with the client before any work begins. Lawsuits and court battles typically aren’t a productive use of your time. Clarify the expectations with the client through a quick discussion to ensure everyone is on the same page. It will ultimately help you get the agreement you both want.